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After reading the the Nearly Legal post this week on R (Faizi) v Brent LBC I thought I would write something about how I have found Section 204A of the Housing Act 1996 to be of no use to homeless persons trying to avoid the loss of their temporary accommodation while they appealed against a decision that they were not entitled to be housed.

The interesting thing about the Faizi case as spotted by Nearly Legal was that Hadon-Cave J refused the application for Judicial Review based on consideration of the issues which Ms Fazi had raised instead of dismissing it for the more obvious reason that she had issued proceedings in the wrong Court. This would be because she was not entitled to apply for Judicial Review as she had a right of appeal to the County Court under Section 204A of the Housing Act 1996.

After looking up the old case law I remembered that the two leading cases on Section 204A appeals were infact Judicial Reviews themselves. Those are R v Camden LBC Ex p Mohammed [1997] 30 HLR 315 and R v Brighton and Hove Council Ex p Nacion (1999) 31 HLR 1095. This was because they concerned the exercise of the council’s discretion to accommodate the applicant pending the outcome of a Section 202 Review where the challenge does have to be made by way of Judicial Review proceedings unlike the exercise of what is effectively the same discretion to house pending appeal which has to be challenged in the County Court under Section 204 of the Housing Act 1996.

Things started off alright back in 1997 with Mohammed where it was held that in considering whether to exercise its discretion to house the council should consider three questions:-

(1) the merits of the substantive case,
(2) whether there was new material on review that could effect the decision,
(3) the personal circumstances of the applicant.

After considering the facts of the the case the Court held that the decision not to accommodate pending review was unlawful. That seems fair enough.

Things took a severe turn for the worse two years later in Nacion where the Court of Appeal held that as long as the council had addressed the three questions set above as identified in Mohammed any challenge of the refusal to accommodate pending review would be almost certain to fail.

Tuckey LJ said: “Where a council, as in this case, has obviously considered the material factors… identified in [R v Camden LBC Ex p Mohammed], it is an entirely futile exercise to seek to say that in some way that discretion was wrongly exercised by coming to the High Court for judicial review and saying, as this applicant does, ‘We have an arguable case on the appeal to the County Court’. Applications for judicial review on this basis should be strongly discouraged. It is only in a very exceptional case that there will really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion which the council have …”

In the same case, Lord Woolf MR said: “If an authority refuses even to consider exercising its discretion… then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate.”

My reading of this is that where the council can show that they have ticked the box marked “thought about it” and have not made some gross error in doing so the Courts will not interfere with their decision. This is because the court will only consider whether the three questions have been answered and not how the council answered them.

In 2003 the Court of Appeal held in Francis v Kensington & Chelsea LBC [2003] 2 All ER 1052 that the principles set out in Nacion in relation to accommodation pending review should be applied by the County Court when considering an appeal under Section 204A and that was that. Since then I have not heard of Section 204A being of any use to anybody. Presumably some people have won appeals which I have not heard about but you would have to be a very brave barrister to advise that a case had a good prospect of success of passing Tuckley LJ’s almost impossible test. Further details of the obstacles that these cases put in the way of homeless persons can be found on this article on the Hardwicke Chambers web site from 2003. I am not aware of any cases since then which have improved the situation.

The ruling in Nacion and Tuckey LJ’s and Woolf MR’s comments reflect extremely badly on the judiciary. Where Parliament has created rights of review and appeal for homeless persons against decisions to deny them assistance which they are entitled to it should not be an “entirely futile” exercise and persons should not be “strongly discouraged” from asking a Judge to require a council to give effect to those rights. It is a great injustice if applicants have to become street homeless whilst waiting for a review or appeal decision to overturn an unlawful refusal to house them.

The good news is that where homeless applicants face the loss of their temporary accommodation pending review or appeal they may still get some protection from street homelessness from the Courts if they have children or if they are vulnerable on medical grounds and the council refuses them temporary accommodation. The secondary duties/powers which councils have to assist such persons under the Children Act 1989 and more gently the Children Act 2004 and Care Act 2014 are open to enforcement through Judicial Review and do not face the same restrictions as apply to Section 204A.

I have created a Resources Section to this site which I hope will be useful reference tool for people interested in this area of law.I have started off by focussing mainly on homelessness. I have included the main Acts, Statutory Guidance and cases.

At the moment the sections for each case are mostly limited to a link to the transcript of the judgement with the heading Summary followed by blank space. I hope to be able to work my though the cases and to update the entries with summaries and comments.

I have included a Comments facility for the cases as with blog posts so that discussion of the cases can take place. If you do have anything to say about the cases please add your comments even if I have not yet added the summary and comments. If you think I have missed out any important Statutes, Guidance or case-law please let me know and I will try to add it. Please let me have any transcripts or links if they are available on link to cases which you think should be included.

This is unfortunately something that housing lawyers hear a lot from parents who have asked for assistance from the Children’s Services Department (aka Social Services) when they have been refused assistance by a Housing Department. A variation of this problem is the social worker advising that they can house the children on their own but not their parents.

Families with children often have to ask social workers for help when they face homelessness. It is easy to fall through the safety net that is supposed to be provided by the Housing Department for homeless persons. A Housing Department will usually refuse to assist a homeless applicant for anything more than a short time where they have been found to be intentionally homeless or if they have refused what is considered to have been an offer of suitable accommodation. Then there are whole swathes of people who are excluded from what is now known as mainstream housing due to their immigration status.

Most people react with understandable horror to the suggestion that the only help available to them in what is already a crisis of facing street homeless is to have their children taken into care. This is especially true when the children are babies. The parents take some persuading that the advice the social worker has given them is wrong and are very reluctant to return to the Children’s Services Department. They find it hard to believe that a social worker would tell them something so unpleasant if it was not true. I have been dealing with parents who have received this advice from staff in many different local authorities for about 15 years now. None of them have had their children housed on their own or taken into care because a parent is homeless. For those who would like to have details available to reassure such people here are some of the reasons why this advice is wrong.

Section 17(3) of the Children Act 1989 states that any service provided by the authority in the exercise of functions conferred on them by this section may be provided for a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. This means that the suggestion that all that can be done is to house the children on their own is absolutely incorrect.

Section 17(1) (b) provides that far as it is consistent with their duty to safeguard and promote the wellbeing being of children they have a general duty to promote the upbringing of such children by their families. This means that the social workers should be taking steps to ensure that the children are housed together with their family unless they consider that it would not be in the best interests of the child to be housed with them. The fact that the parent has been unable to prevent them from facing homeless should not come close on its own to justifying the suggestion that it would not be in the interests of a child to be housed with that parent.

The Statutory Guidance Working Together To Safeguard Children provides (at page 19) that good assessments by social workers should include consideration of the needs of children within their family and should involve the family. This is not compatible with the idea that the only assistance that can be provided at the end of the assessment process is to separate children from their families.

If anyone can point out any other reasons please add a comment. I am sure there are more.

Conclusion

Where families are given this advice a letter of complaint and/or a letter in accordance with the pre action protocol for Judicial Review proceedings should be sent to the council concerned asking them to confirm that they have provided this incorrect advice or to arrange a proper assessment. In my experience this leads to a quick response from a Children’s Services Department manager or the Legal Department stating that the family must have misunderstood what was said and inviting the family to return to the office for a proper assessment.